A Challenge to Warrantless Wiretapping that Isn’t Subject to the State Secrets Defense

Belew's bout with the Terrorist Surveillance Program began in 2004, when he was representing the U.S. branch office of the prominent Saudi Arabian charity Al-Haramain. Formerly one of the largest charities in Saudi Arabia, Al-Haramain worked to spread a strict view of Islam through philanthropy, missionary work and support for mosques around the world.

Federal officials were investigating the Ashland, Oregon, branch of the group for alleged links to terrorism, and had already frozen the charity's U.S. assets. Belew was one of several lawyers trying to keep Al-Haramain off a U.S. Treasury Department watch list — an effort that sent much paperwork flying back and forth between the attorneys and the Treasury Department's Washington D.C. headquarters across the street from the White House.

On Aug. 20, 2004, fellow Al-Haramain attorney Lynne Bernabei noticed one of the documents from Treasury was marked “top secret.” Bernabei gave the document to attorneys and directors at Al-Haramain's Saudi Arabia headquarters, and gave a copy to Belew. The document was a log of phone conversations Belew and co-counsel Asim Ghafoor had held with a Saudi-based director for the charity named Soliman al-Buthi.

Turns out that was a mistake, and the FBI asked for (and received) the document back, but not before copies got to the Washington Post (also retrieved) and Saudi Arabia (not returned).

And now that document is the smoking gun evidence of an NSA wiretapping program. And because there's documentary proof, the government can't argue — as it has in all other similar cases — that the shady state secrets privilege immunizes it from even having to say whether it is wiretapping people without bothering to get FISA authorization.

And it's not that hard to see why the government didn't go the FISA court on these facts — it's not all that obvious that a court would allow the government to eavesdrop on lawyers working with a client to challenge a government action.

In fact, that sort of eavesdropping — violating attorney-client privilege — is the sort of hypothetical horrible that the government spokespersons routinely pooh-pooh, saying in horrible injured tones, how could you possibly suspect honorable people like us of ever violating constitutional rights so blatantly.